THE PRINCIPLE OF LEGALITY: AN AUSTRALIAN COMMON LAW BILL OF RIGHTS?

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1 The Principle of Legality: An Australian Common Law Bill of Rights? THE PRINCIPLE OF LEGALITY: AN AUSTRALIAN COMMON LAW BILL OF RIGHTS? Alexis Henry-Comley* Abstract This article examines the common law principle of legality, its content, operation and flaws, before turning to discuss the human rights protection afforded to the peoples of the Australian Capital Territory and Victoria through the Human Rights Act 2004 (ACT) and the Charter of Human Rights and Responsibilities Act 2006 (Vic). Under the common law principle of legality legislation is construed consistently with fundamental rights. The article finally compares the interpretive obligations placed on the courts by both the principle of legality and the current Australian human rights legislation to determine whether there is any weight to the proposition that the principle of legality is a common law bill of rights in Australia. I Introduction Australia is the only democratic country in the world without a national bill of rights of some kind. 1 While there is a plethora of legislation Australia wide dealing with particular rights, for example anti discrimination legislation, there are presently only two Australian jurisdictions that have enacted a kind of bill of rights or human rights Act. 2 The issue has been debated in New South Wales, Western Australia and Tasmania as well as at the federal level to no avail. 3 The release of the National Human Rights Consultation Report in 2009 made it evident that a human rights Act of some kind, at a federal level, was desired by the community and * LLB Hons, GDLP, Casual Tutor, School of Law, University of South Australia. The author would like to thank Dr Steven Churches for his assistance and comments on earlier versions of this article. The author would also like to thank the anonymous referees for their feedback and suggestions, and Dr Wendy Lacey for her guidance and feedback during the editing process. 1 George Williams, Critique and Comment, The Victorian Charter of Human Rights and Responsibilities: Origins and Scope (2006) 30 Melbourne University Law Review 880, Human Rights Act 2004 (ACT); Charter of Human Rights and Responsibilities Act 2006 (Vic). 3 Simeon Beckett, Interpreting Legislation Consistently with Human Rights (2008) 58 Australian Institute of Administrative Law 43,

2 (2013) 15 UNDALR indeed recommended by the Committee. 4 In 2010 however it became apparent that the political inclination to carry out this recommendation did not exist. 5 This was hardly surprising given that Australia s method of human rights protection has long been influenced by the notion that the best protection for human rights is the good sense of our parliamentary representatives as constrained by the doctrine of responsible government and the common law as applied by the judiciary. 6 Despite the lack of formal human rights protection, Australia s human rights record is significantly better than many other countries. 7 It is no longer acceptable to think that Australia s human rights record could not be substantially improved though. 8 Legislative and executive practices have caused Australia s human rights reputation to deteriorate. Immigration detention and the treatment of asylum seekers and refugees provide an example. Post 9/11 anti- terrorism legislation allowing for the detention of non-suspects, control orders enabling house arrest and preventative detention allowing individuals to be held without charge or trial are others. 9 Absent a formal bill of rights of some kind, human rights protection to date has largely been an area for the courts through the application of the common law and principles of statutory interpretation. One principle invoked by the courts when a statute before them purports to interfere with human rights is the principle of legality. It provides indirect protection for rights. 10 It has been applied by the courts for over a century to a host of rights. It has been suggested that the common law rights protected by the application of the principle of legality constitute an attempt by the courts to provide, in effect, a common law bill of rights. 11 One of the reasons 4 National Human Rights Consultation Committee, National Human Rights Consultation Report (2009). 5 See Attorney-General s Department (Cth), Australia s Human Rights Framework (2010) < draftbaselinestudy/australiashumanrightsframework.pdf>/. 6 Williams, above n 1, Ibid Ibid. 9 Ibid. 10 Jennifer Corrin, Australia: A Country Report on Human Rights (2009) 40 Victoria University of Wellington Law Review 37, D C Pearce and R D Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 6 th ed, 2006) 165 [5.2]; Robin Creyke, The Performance of Administrative Law in Protecting Rights cited in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Protecting Rights Without a Bill of Rights (Ashgate Publishing, 2006) 101, 113; Chief Justice J J Spigelman, Statutory Interpretation and Human Rights (University of Queensland Press, 2008)

3 The Principle of Legality: An Australian Common Law Bill of Rights? frequently cited against the adoption of an Australian bill of rights hinges on this argument. The argument has been made that rights are already adequately protected in Australia through the High Court s interpretation of the Constitution and the common law. 12 Further, the arrangements already in place in Australia are strong enough to provide firm rights protection and are flexible enough to respond to changing needs for future protection. 13 This argument is further supported by the wide coverage offered by the principle of legality. 14 This article does not advocate the position that Australia should not have a federal bill of rights. Human rights protection in Australia would be best afforded through the dialogue model advocated for by the National Human Rights Consultation Committee involving all three arms of government, as is seen in the ACT and Victoria. The desire for a federal bill of rights is there, but unfortunately the political inclination is not. Because of this, the role of the courts and the principle of legality are of relevance, if not importance. It is the responsibility of human rights lawyers to further explore the options available at the present and how best to use them. Looking into the distant future, should the notion of a bill of rights at a federal level gain enough political support to be drafted, it does not automatically preclude the operation of the common law. As will become evident later in this article, the rights desirous of protection under a bill of rights can differ significantly from those already recognised as attracting the operation of the principle of legality. The principle would remain one of the important essential tools for the judiciary in enhancing the protection of human rights in Australia. 15 For these reasons, this article will examine the proposition that the principle of legality constitutes a common law bill of rights in Australia through a detailed statement of the principle in Australia and a comparison with existing ACT and Victorian human rights legislation. II The Principle of Legality The principle of legality has long been a crucial tool of the judiciary when considering questions of statutory interpretation. The principle provides that when interpreting a statute the court will not impute 12 George Williams, A Bill of Rights for Australia (University of New South Wales Press, 2000) Hon Daryl Williams quoted in Chief Justice Paul de Jersey, A Reflection on a Bill of Rights in Julian Leeser and Ryan Haddrick (eds), Don t Leave Us with the Bill: The Case Against an Australian Bill of Rights (Menzies Research Centre, 2009) 3, Creyke, above n 11, Wendy Lacey, Implementing Human Rights Norms: Judicial Discretion & Use of Unincorporated Conventions (Presidian Legal Publications, 2008)

4 (2013) 15 UNDALR to Parliament an intention to abrogate fundamental rights unless express language to the contrary appears. It has been long established as part of the Australian common law, having been first articulated in the High Court in 1908 by O Connor J, quoting from Maxwell, On the Interpretation of Statutes, in the case of Potter v Minahan: 16 It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. 17 This statement has been consistently approved and endorsed by the High Court. 18 A forceful and often cited expression of the principle was given in the joint judgment in Coco v The Queen: 19 The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights. 20 The phrase principle of legality seems to have first been used by Sir Rupert Cross 21 and then later by administrative law academics. 22 Gleeson CJ, as he then was, first used the term in Australia in his 2000 Boyer Lecture series and went on to develop the principle substantially through cases such as Plaintiff S157/2002 v Commonwealth, 23 Al- Kateb v Godwin 24 and Electrolux Home Products Pty Ltd v Australian Workers Union. 25 Following on from these cases the principle of legality in Australia represents the interpretive principle that: 16 (1908) 7 CLR Ibid 304, quoting P B Maxwell, On the Interpretation of Statutes (Sweet & Maxwell, 4th ed, 1905) 122 (citations omitted). 18 Pearce and Geddes, above n 11, 184 [5.24]. See also Coco v The Queen (1994) 179 CLR 427, (1994) 179 CLR Ibid 437 (Mason CJ, Brennan, Gaudron and McHugh JJ) (citations omitted). 21 Rupert Cross, Statutory Interpretation (Oxford University Press, 3 rd ed, 1995) D Dyzenhaus, M Hunt and M Taggart, The Principle of Legality in Administrative Law: Internationalisation as Constitutionalisation (2001) 1 Oxford University Commonwealth Law Journal (2003) 211 CLR 476, (2004) 219 CLR 562, (2004) 221 CLR

5 The Principle of Legality: An Australian Common Law Bill of Rights? [C]ourts [will] decline to impute to parliament an intention to abrogate or curtail fundamental human rights or freedoms unless such an intention is clearly manifested by unambiguous language, which indicates that parliament has directed its attention to the rights and freedoms in question, and has consciously decided upon abrogation or curtailment. 26 Spigelman CJ of the Supreme Court of New South Wales has stated that the principle of legality should be regarded as a unifying concept incorporating a number of interpretive common law applications. 27 These applications illustrate common law rights that the courts have found warrant protection through the principle of legality. This approach reflects the position in England where Lord Steyn contributed significantly to its introduction. 28 The principle has been expressed in cases such as R v Secretary of State for the Home Department; Ex parte Pierson 29 and R v Secretary of State for the Home Department; Ex parte Simms. 30 A clear statement of the English position can be seen in the latter by Lord Hoffmann: In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. 31 He has stated that the principle requires Parliament to squarely confront what it is doing and accept the political costs. 32 The words of Lord Hoffmann have been subsequently quoted and approved in the High Court. 33 The purpose of the principle of legality is not to provide positive human rights protection but to ensure that parliamentarians are held responsible and accountable for the decisions they make regarding the abrogation of human rights or freedoms. 34 The parliamentary process 26 Murray Gleeson, The Meaning of Legislation: Context, Purpose and Respect for Fundamental Rights (2009) 20 Public Law Review 26, Chief Justice J J Spigelman, Principle of Legality and the Clear Statement Principle (2005) 79 Australian Law Journal 769, R v Secretary of State for the Home Department; Ex parte Pierson [1998] AC 539; Lord Steyn, Democracy Through Law [2002] European Human Rights Law Review 723, [1998] AC 539, (Lord Steyn). 30 [2000] 2 AC 115, 131 (Lord Hoffmann). 31 Ibid Ibid. 33 Daniels Corp International Pty Ltd v ACCC (2002) 213 CLR 543, 582 (Kirby J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 [30] (Gleeson CJ); Al-Kateb v Godwin (2004) 219 CLR 562, 577 [19] (Gleeson CJ). 34 Wendy Lacey, Liberty, Legality and Limited Government: Section 75(v) of the Constitution (Paper presented at the 12th Annual Public Law Weekend, Centre for International and Public Law, Australian National University, 9 November 2007)

6 (2013) 15 UNDALR must operate as it is intended, so that those who [are] depriving people of their entitlements and expectations, [have] shouldered the responsibility and assumed public accountability for the amendments which they enacted. 35 It also prevents ordinary words being given a meaning which Parliament did not intend. 36 The courts have applied the principle of legality to protect a number of different rights. What constitutes a right capable of protection has been developed as a part of the common law of statutory interpretation over time. 37 One of the great mysteries in this area is which rights are collected under the heading of the principle of legality. Commentators have attempted to construct many lists of the applications of the principle of legality which vary in length and content. Despite the many attempts the exact make up of the list is illusory. The list below is predominantly influenced by two of the main list constructors in this area, Spigelman CJ 38 and Pearce and Geddes. 39 Regardless of the author, most lists share a number of applications in common. These commonly include that Parliament did not intend to: 1) Invade fundamental rights, freedoms and immunities 40 2) Retrospectively change rights and obligations 41 3) Infringe personal liberty 42 4) Interfere with freedom of movement 43 5) Interfere with freedom of speech Ibid, quoting Chang v Laidley Shire Council (2007) 234 CLR 1, 27 [85] (Kirby J) (citations omitted). 36 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann). 37 Spigelman, above n 27, Chief Justice J J Spigelman, Statutory Interpretation: Identifying the Linguistic Register (1999) 4 Newcastle Law Review 1, 11; Spigelman, above n 27, 775; Chief Justice J J Spigelman, Blackstone, Burke, Bentham and The Human Rights Act 2004 (2005) 26 Australian Bar Review 1, 6 7; Spigelman, above n 11, Pearce and Geddes, above n 11, [5.4] [5.35]. 40 Potter v Minahan (1908) 7 CLR 277; Bropho v Western Australia (1990) 171 CLR 1; Plaintiff s157/2002 v Commonwealth (2003) 211 CLR 476; Coco v The Queen (1994) 179 CLR 427; Al-Kateb v Godwin (2004) 219 CLR 562; Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri (2003) 126 FCR Cox v Hakes (1890) 15 App Cas 506; Newell v The King (1936) 55 CLR 707; Maxwell v Murphy (1957) 96 CLR 261; Fisher v Hebburn Ltd (1960) 105 CLR 188; Rodway v The Queen (1990) 169 CLR 515; Esber v Commonwealth (1992) 174 CLR Re Bolton; Ex parte Bean (1987) 162 CLR 514; Al-Kateb v Godwin (2004) 219 CLR 562; Uittenbosch v Chief Executive, Department of Corrective Services [2006] 1 Qd R Commonwealth v Progress Advertising & Press Agency Co Pty Ltd (1910) 10 CLR 457; Potter v Minahan (1908) 7 CLR 277; Melbourne Corporation v Barry (1922) 31 CLR Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC

7 The Principle of Legality: An Australian Common Law Bill of Rights? 6) Alter criminal law practices based on the principle of a fair trial 45 7) Restrict access to the courts 46 8) Permit an appeal from an acquittal 47 9) Interfere with the course of justice 48 10) Abrogate legal professional privilege 49 11) Exclude the right to claim self-incrimination 50 12) Extend the scope of a penal statute 51 13) Deny procedural fairness to persons affected by the exercise of public power 52 14) Give executive immunities a wide application 53 15) Interfere with vested property rights 54 16) Authorise the commission of a tort 55 17) Alienate property without compensation 56 18) Disregard common law protection of personal reputation 57 19) Interfere with equality of religion 58 There are also a number of less common applications that have been included from time to time, or which are recognised by the common 45 Bishop v Chung Bros (1907) 4 CLR 1262; Tassell v Hayes (1987) 163 CLR 34; R v Fuller (1994) 34 NSWLR 233; Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Malika Holdings Pty Ltd v Stretton (2001) 204 CLR Magrath v Goldsborough, Mort & Co Ltd (1932) 47 CLR 121; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR Davern v Messel (1984) 155 CLR Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; Daniels Corp International Pty Ltd v ACCC (2002) 213 CLR 543; R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328; Crafter v Kelly [1941] SASR 237; Hamilton v Oades (1989) 166 CLR 486; Rich v Australian Securities and Investment Commission (2004) 220 CLR 129; McGee v Gilchrist- Humphrey (2005) 92 SASR Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182; Krakouer v The Queen (1998) 194 CLR Commissioner of Police v Tanos (1958) 98 CLR 383; Annetts v McCann (1990) 170 CLR 596; Ainsworth v Criminal Justice Commission (1992) 175 CLR Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105; Puntoriero v Water Administration Ministerial Corporation (1999) 199 CLR Clissold v Perry (1904) 1 CLR 363; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677; Clunies-Ross v Commonwealth (1984) 155 CLR Coco v The Queen (1994) 179 CLR Commonwealth v Hazeldell Ltd (1918) 25 CLR 552; Colonial Sugar Refining Co Ltd v Melbourne Harbour Trust Commissioners [1927] AC 343; Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR Balog v Independent Commission Against Corruption (1990) 169 CLR Cantebury Municipal Council v Moslem Alawy Society Ltd (1985) 1 NSWLR

8 (2013) 15 UNDALR law but have not necessarily been included previously. All of these applications, like those listed above, have a solid foundation at common law. Those applications which are less common include (continuing the prior numbering) that Parliament did not intend to: 20) Exclude the mens rea element from statutory offences 59 21) Infringe common law rights 60 22) Alter common law doctrines 61 23) Deny the right to legal counsel when charged with a serious crime 62 24) Restrict rights of actions for damages 63 25) Legislate in conflict with international law. 64 It is not clear as to why these less common applications are so inconsistently included. No one list of applications is meant to be exhaustive so applications may be overlooked. For example, the application with respect to the exclusion of the mens rea element from statutory offences has often been overlooked in recent times despite continual development of the principle and acknowledgement from the High Court in CTM v The Queen. 65 Some of the applications are so widely accepted that express repetition is not necessary. 66 Indeed this may be the reason why the application regarding the denial of legal counsel when charged with a serious crime is not regularly included. Applications may also weaken over time and lose the status of fundamental common law rights. For instance the specific application that Parliament does not intend to infringe common law rights has been 59 R v Tolson (1889) 23 QBD 168; Thomas v The King (1937) 59 CLR 279; Proudman v Dayman (1941) 67 CLR 536; He Kaw Teh v The Queen (1985) 157 CLR 523; CTM v The Queen (2008) 236 CLR Sargood Bros v Commonwealth (1910) 11 CLR 258, 279 (O Connor J); Melbourne Corporation v Barry (1922) 31 CLR 174, 206 (Higgins J); Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328, 341 (Mason ACJ, Wilson and Dawson JJ), Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 (Gleeson CJ). 61 Potter v Minahan (1908) 7 CLR Dietrich v R (1992) 177 CLR Chief Justice J J Spigelman, Blackstone, Burke, Bentham and The Human Rights Act 2004 (2005) 26 Australian Bar Review 1, Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 (O Connor J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J), 304 (Gaudron J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 (Gleeson CJ). 65 (2008) 236 CLR 440, 498 [202]. See also Susannah Hodson, CTM v The Queen: A Challenge to the Fundamental Presumption of Mens Rea (2010) 34 Criminal Law Journal 187, Spigelman, above n 11,

9 The Principle of Legality: An Australian Common Law Bill of Rights? labelled weak. 67 Likewise the application that Parliament does not intend to alter common law doctrines is also now considered weak. 68 Some more specific applications are often excluded in favour of more general applications. For example, the application with respect to the restriction of rights of actions to damages is, arguably, a more specific subclass of the application with respect to restricting access to the courts. The inclusion of the more general application encompasses the more specific application and so it is not consistently included separately. Some applications are controversial and are inconsistently included for this reason. For example, the application of international law to domestic affairs has always been an area of great debate and as such the application with respect to conformity with international law is not regularly included although it has found support from the High Court in some instances. 69 At this stage, it is important to make two points about the principle of legality clear. These points are arguably perceived as weaknesses. The first is that the principle is entirely rebuttable and at the mercy of Parliament just like any other common law doctrine. In recognition of the doctrine of parliamentary supremacy it is an uncontested fact that Parliament may legislate to alter or remove common law rights. 70 This is to say that the principle of legality is rebuttable. The common law requires that a high level of certainty be satisfied before courts will impute to Parliament an intention to abrogate or curtail fundamental rights. 71 The search will always be phrased in terms of the intention of Parliament. This is deceptive. The courts will look for the intention of Parliament as expressed or necessarily implied in the legislation only. 72 That is to say that it is all very well for Parliament to have intended for a certain Act to remove a specific right but without a clear expression of this intent or necessary implication the courts will not recognise it. 67 Gifford v Strang Patrick Stevedoring Pty Ltd (2003) 214 CLR 269, 284 (McHugh J). 68 Lacey, above n 34, Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363 (O Connor J); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 38 (Brennan, Deane and Dawson JJ); Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287 (Mason CJ and Deane J), 304 (Gaudron J); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 492 (Gleeson CJ); Coleman v Power (2004) 220 CLR 1, (Kirby J). 70 Brendan Lim, A Principle of Legality for an Age of Statutes: Part One (2007) 29(8) Bulletin (Law Society of S.A.) 8, 8. Cf Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 564 (Gleeson CJ, Gummow, Hayne and Heydon JJ); Attorney- General (WA) v Marquet (2003) 217 CLR 545, 570; Anthony Gray, Constitutionally Protecting the Presumption of Innocence (2012) 31(1) University of Tasmania Law Review 132, Spigelman, above n 27, Ibid. 91

10 (2013) 15 UNDALR This imposes a far more stringent obligation for Parliament to satisfy. 73 This is supposed to ensure that Parliament accepts the political costs of such a decision. 74 Therefore what is required before courts will impute to Parliament an intention to displace the principle of legality is the application of the clear statement principle. 75 There are a number of different formulations of this principle which reflect how Parliament s intention needs to be expressed. 76 Regardless of which way it is formulated the clear statement principle requires that Parliament must express its intention to abrogate or curtail fundamental human rights and freedoms in unambiguous language or through necessary implication showing that it has considered and consciously decided upon the abrogation or curtailment. An example of express abrogation can be illustrated as follows. Section 190(2) of the Crime and Misconduct Act 2001 (Qld) reads: (2) The person is not entitled (a) to remain silent; or (b) to refuse to answer the question on a ground of privilege, other than legal professional privilege. It was decided in the cases of Witness A v Crime and Misconduct Commission (Qld) ( Witness A ) 77 and Witness C v Crime and Misconduct Commission (Qld) ( Witness C ) 78 that this section abrogated the privilege against self-incrimination. In Witness A 79 the applicant refused to answer questions relating to persons and their involvement with illegal drugs. 80 He had also been conjointly charged with these people for unlawfully supplying methylamphetamines. 81 White J held that it was clear that section 190(2) expressly removed the privilege against self-incrimination. 82 Her Honour also held that it should be read in conjunction with section 194(2)(a) and (b): Ibid. 74 Gleeson, above n 26, Spigelman, above n 27, Durham Holdings Pty Ltd v New South Wales (1999) 47 NSWLR 34, 353, [44] (Spigelman CJ). 77 [2005] QSC (2008) 187 A Crim R [2005] QSC Ibid [2]. 81 Ibid. 82 Ibid [31]. 83 Ibid. 92

11 The Principle of Legality: An Australian Common Law Bill of Rights? (2) If the presiding officer decides, after hearing the person s submissions, that the person has a reasonable excuse based on self-incrimination privilege for not complying with the requirement (a) the presiding officer may require the person to comply with the requirement; and (b) section 197 applies in relation to the answer, document or thing given or produced. Section 197 provides a limited use immunity which limits the use that can be made of incriminating evidence in criminal, civil and administrative proceedings. 84 White J concluded that the privilege had been expressly removed by these sections. 85 Similarly in Witness C 86 the applicant was called to give evidence with respect to the alleged drug activities of an individual. She was also facing several drug charges at the time. Cullinane J followed the reasoning of White J in Witness A 87 and held that the privilege against self-incrimination had been removed by section 190(2). This conclusion was further supported by the fact that privilege was defined in the Act as a reference to the privilege against self-incrimination and legal professional privilege. 88 Given that section 190(2)(b) expressly preserved the operation of legal professional privilege, the privilege against self-incrimination was obviously intended to be excluded. It was clear from the purpose of the Act 89 and the Explanatory Notes to the Bill put before the Court that Parliament had intended to abrogate the privilege against self-incrimination. Therefore, if the Court had not been satisfied that the privilege had been expressly abrogated, sufficient evidence exists to conclude that the privilege would have been abrogated by necessary implication. Abrogation through necessary implication is to be determined by examining the language, character and purpose of the Act as a whole. 90 The necessarily implied removal of fundamental rights will occur where to support any other interpretation would render the Act or section thereof inoperative or meaningless. 91 Where there is a failure to unambiguously express intent, ie, where only general words are used, the instances of an Act or provision becoming inoperative or meaningless 84 Crime and Misconduct Act 2001 (Qld) s 197(2). 85 [2005] QSC 119, [41]. 86 (2008) 187 A Crim R [2005] QSC Crime and Misconduct Act 2001 (Qld) sch Ibid ss 4, A v Boulton (2004) 136 FCR 420, 335, [55]. 91 Pearce and Geddes, above n 11, 167, [5.3]. 93

12 (2013) 15 UNDALR should theoretically be minimal. 92 The necessarily implied removal of a fundamental right does not arise as a matter of absolute necessity, in other words, the prior exhaustion of all alternative implications is not a requirement. 93 Simply put, an interpretation that removes a fundamental right by necessary implication must have been necessary to keep the Act or section thereof from becoming inoperative. Abrogation by necessary implication can be illustrated by looking at a series of cases again examining the privilege against self-incrimination. Section 30(2) of the Australian Crime Commission Act 2002 (Cth) ( ACC Act 2002 (Cth) ) reads as follows: (2) A person appearing as a witness at an examination before an examiner shall not: (a) (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed. While the words of the section do not expressly remove the privilege, however, the courts have found that the privilege is removed through necessary implication. In Mansfield v Australian Crime Commission 94 the applicant was being investigated in relation to Commonwealth fraud, while confiscation proceedings were on foot. The applicant was required to answer questions in relation to the confiscation proceedings, the answers to which would be open to use by the State DPP. The applicant argued that he was entitled to claim the privilege against self-incrimination, and being compelled to answer the questions would impede his defence in the confiscation proceedings. 95 The respondent argued that section 30(2)(b) of the ACC Act 2002 (Cth) expressly removed the privilege against self-incrimination. 96 Carr J of the Federal Court held that there were no words in section 30(2)(b) to expressly remove the privilege against self-incrimination. 97 He did find however that a legislative intent to exclude the privilege could be found by reading section 30(2) alongside sections 30(4) and (5). 98 Those sections read: 92 Coco v R (1994) 179 CLR 427, A v Boulton (2004) 136 FCR 420, 335 [55]. 94 (2003) 132 FCR Ibid 258 [31]. 96 Ibid 259 [35]. 97 Ibid 260 [43]. 98 Ibid 260 [48]. 94

13 The Principle of Legality: An Australian Common Law Bill of Rights? (4) Subsection (5) limits the use that can be made of any answers given at an examination before an examiner, or documents or things produced at an examination before an examiner. That subsection applies if: (a) a person appearing as a witness at an examination before an examiner: (i) answers a question that he or she is required to answer by the examiner; or (ii) produces a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed; and (b) (c) before answering the question or producing the document or thing, the person claims that the answer, or the production of the document or thing, might tend to incriminate the person or make the person liable to a penalty. (5) The answer, or the document or thing, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than: (c) confiscation proceedings; or (d) a proceeding in respect of: (i) in the case of an answer the falsity of the answer; or (ii) in the case of the production of a document the falsity of any statement contained in the document. These sections provide protection from the consequences stemming from the abrogation of the privilege. Carr J went on to say that he could think of no other reason for the inclusion of these provisions if the intent of Parliament was not to remove the privilege against selfincrimination. 99 Further he referred to the comments of Mason, Wilson and Dawson JJ in R v Sorby 100 where they stated that when a legislature abrogates the privilege it will also often give compensatory protection to those affected by the abrogation. 101 Carr J held that section 30(2) removed the common law privilege against self-incrimination by necessary implication. In A v Boulton 102 the respondent issued a summons requiring the appellant to appear before it and answer questions regarding an alleged illegal importation of cigarettes. 103 The appellant submitted that he was not obliged to answer any questions of the respondent on the basis that they would tend to incriminate him and the true construction of the ACC Act 2002 (Cth) did not remove the common law privilege against 99 Ibid 261 [49]. 100 (1983) 152 CLR 281, (2003) 132 FCR 251, 261, [49]. 102 (2004) 136 FCR Ibid 422 [5]. 95

14 (2013) 15 UNDALR self-incrimination. 104 The Full Federal Court (Beaumont, Dowsett and Kenny JJ) followed Carr J s decision in Mansfield v Australian Crime Commission 105 and held that while section 30(2) did not expressly remove the privilege it did do so through necessary implication. 106 Kenny J, with whom the others agreed, also considered these provisions as well as the purpose and character of the Act in coming to her decision. 107 Her Honour did note that the phrase necessary implication did not mean that all other possible implications had to have been excluded nor did abrogation need to arise as a matter of absolute necessity. 108 Loprete v Australian Crime Commission 109 and X v Australian Crime Commission 110 were parallel proceedings heard by Finn J. Both of these cases again involved the question of whether section 30(2) had abrogated the privilege against self-incrimination specifically in relation to the commission of foreign offences. Once again, in both cases, the decision in A v Boulton 111 meant that the privilege had been abrogated by necessary implication. 112 The privilege had been removed with respect to foreign offences. 113 These examples illustrate how the clear statement principle operates and demonstrates abrogation, both express and by necessary implication. Other examples exist including section 250 of the Companies Act 1961 (Qld), 114 section 541(12) of the Companies (NSW) Code, 115 section 77(1) of the Bankruptcy Act 1966 (Cth) 116 and section 155(7) of the Trade Practices Act 1974 (Cth). By way of contrast in McGee v Gilchrist-Humphrey 117 the Full Court of the Supreme Court of South Australia (Doyle CJ, Perry and Sulan JJ) held that the Royal Commission Act 1917 (SA) did not remove the privilege against self-incrimination either expressly 118 or by necessary 104 Ibid. 105 Mansfield v Australian Crime Commission (2003) 132 FCR A v Boulton (2004) 136 FCR 420, 435 [56]. 107 Ibid 435 [57]. 108 Ibid 435 [55]. 109 [2004] FCA (2004) 139 FCR (2004) 136 FCR X v Australian Crime Commission (2004) 139 FCR 413, [39]. 113 Ibid. 114 Mortimer v Brown (1970) 122 CLR Hamilton v Oades (1989) 166 CLR Griffin v Pantzer (2004) 137 FCR (2005) 92 SASR Ibid 107 [29]. 96

15 The Principle of Legality: An Australian Common Law Bill of Rights? implication. 119 This was despite the fact that a limited use immunity was provided for in section 16 of the Act: A statement or disclosure made by any witness in answer to any question put to him by the commission or any of the commissioners shall not (except in proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any court. A section such as this has, from time to time, been indicative of Parliament s intention to abrogate the privilege against selfincrimination. 120 Nothing about the subject matter or purpose of the Act indicated that Parliament s intention was to abrogate the privilege though. 121 The second point worthy of mention is that there is much debate and uncertainty regarding which rights are considered fundamental, and how or why they achieve this status, and therefore come under the banner of the principle of legality. 122 Each attempt at identifying the common law rights to which the principle of legality applies produces a combination of the above applications but no one list is the same as the next. No one combination is right or wrong. There are no relevant definitions or tests to tell us which common law rights attract the fundamental label. Indeed, whether a common law right is fundamental or not is essentially a matter for the courts to decide, informed by the history of the common law. 123 Courts should always recognise shifts in community values though. 124 Once a particular right attains fundamental status, it does not mean that it will continue to hold this status indefinitely. Rights which are considered fundamental now may not be at a later date or in a different context. 125 In other words these rights gain or lose strength over time. 126 Therefore, judges make their decisions as to which rights are fundamental after detailed analysis of the 119 Ibid 112 [50]. 120 Ibid 108 [35]. 121 Ibid 109 [37]. 122 For example, in Australian Crime Commission v Stoddart (2011) 244 CLR 554, 619 [166], Heydon J (in his dissenting judgment) made the following comment with respect to the existence of a right against spousal incrimination in response to the appellant s argument that fundamental status depended on recognition as such by decided cases: But a right does not become fundamental merely because cases call it that. And a right does not cease to be fundamental merely because cases do not call it that. His Honour went no further to clarify the test. See also Dan Meagher, The Common Law Principle of Legality in the Age of Rights (2011) 35 Melbourne University Law Review 449, Spigelman, above n 11, Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290, 298 (McHugh J). 125 Pearce and Geddes, above n 11, 168 [5.3]. 126 Catriona Cook, Robin Creyke, Robert Geddes and David Hamer, Laying Down the Law (LexisNexis Butterworths, 6 th ed, 2005) 266 [11.3]. 97

16 (2013) 15 UNDALR history of the common law, but in the end, common law development stems from judicial choice. 127 A good example to illustrate this point comes from the High Court decision of Australian Crime Commission v Stoddart. 128 This case is the most recent instalment in a series of cases on whether or not there is a separate and distinct fundamental common law right against spousal incrimination. The question was first raised in recent times in the Queensland Court of Appeal case Callanan v B 129 with reference to section 190(2) of the Crime and Misconduct Act 2001 (Qld). The right not to incriminate one s spouse had not often been acknowledged by academic commentators or judges alike. The Court held, after referring to an article by David Lusty 130 in which historical authorities were discussed, 131 that there was a common law privilege against spousal incrimination. This line of reasoning was subsequently followed and developed by the Federal Court in Stoten v Sage, 132 S v Boulton, 133 and Stoddart v Boulton 134 with respect to section 30(2) of the ACC Act 2002 (Cth). In Stoten v Sage 135 the applicant was summoned to give evidence in relation to the involvement of a number of individuals in certain offences. One of the individuals in question was the applicant s husband. Dowsett J recognised that there was a common law privilege against spousal incrimination and it could be claimed in non-judicial proceedings. It was also held however that section 30(2) removed this privilege. 136 In S v Boulton 137 the appellant was summoned to give evidence before the respondent about the alleged criminal activities of her de facto spouse. 138 The Full Federal Court (Black CJ, Jacobson and 127 Meagher, above n 122, (2011) 244 CLR (2004) 151 A Crim R David Lusty, Is there a Common Law Privilege against Spouse-Incrimination (2004) 27 University of New South Wales Law Journal Riddle v The King (1911) 12 CLR 622, (Griffith CJ); Tinning v Moran (1939) AR (NSW) 148, 151; Re Wagner [1958] QWN 49; Re Intercontinental Development Corporation Pty Ltd (1975) 1 ACLR 253, 259; Navair Pty Ltd v Transport Workers Union of Australia (1981) 52 FLR 177, 193; Metroplaza Pty Ltd v Girvan NSW Pty Ltd (in liq) (1992) 37 FCR 91, 92; Re New World Alliance Pty Ltd (rec and mgr apptd); Syncotex Pty Ltd v Baseler (1993) 47 FCR 90, (2005) 144 FCR (2006) 151 FCR (2010) 185 FCR (2005) 144 FCR Ibid 493 [14]. 137 (2006) 151 FCR Ibid [66] [67]. 98

17 The Principle of Legality: An Australian Common Law Bill of Rights? Greenwood JJ) held that there was a common law privilege against spousal incrimination. 139 This privilege did not, however, extend to a de facto spouse. 140 It was therefore not necessary to decide whether the privilege had been abrogated in that case. Obiter comments were divided on the subject though. Jacobson and Greenwood JJ indicated that the privilege had been removed. 141 Black CJ disagreed on the basis that there was no evidence that Parliament had turned its mind to the abrogation of such a privilege and so it remained untouched. 142 Finally in Stoddart v Boulton 143 the Full Federal Court (Spender and Logan JJ, Greenwood J dissenting) followed the reasoning of Black CJ in S v Boulton. 144 Spender and Logan JJ held that the privilege against spousal incrimination is a distinct and separate common law privilege and had not been removed by section 30(2). 145 No evidence existed showing that Parliament s attention was turned to spousal privilege and abrogation subsequently decided upon. The Court held that the right to claim spousal privilege had not been removed by section 30. Greenwood J on the other hand maintained his reasoning from S v Boulton 146 and held that whether or not it was an extension or a separate privilege, the privilege against spousal incrimination had been removed. 147 These authorities seemed to show historical common law backing and some academic support for recognising the privilege against spousal incrimination as a distinct and separate common law right to the privilege against self-incrimination. The decision in Stoddart v Boulton 148 was appealed to the High Court. 149 During the course of argument in the High Court, counsel for the appellant argued that the historical authorities referenced in favour of a privilege against spousal incrimination were in fact to do with the issue of a spouse as a competent and compellable witness and therefore the historical backing of the privilege was weak at best and the policy considerations underlying them were no longer consistent with community values on the subject. 150 The High Court agreed, stating that the authorities relied upon were with regard to the question of compellability and 139 Ibid 370 [28], 381 [99], 389 [171]. 140 Ibid 375 [50], 383 [119], 390 [172]. 141 Ibid 387 [143], 390 [173]. 142 Ibid 377 [59]. 143 (2010) 185 FCR (2006) 151 FCR Ibid 371 [29], 389 [163]. 146 (2006) 151 FCR Ibid 383 [126]. 148 (2010) 185 FCR Australian Crime Commission v Stoddart (2011) 244 CLR Ibid

18 (2013) 15 UNDALR not privilege. 151 No distinct and separate privilege against spousal incrimination exists at common law. 152 The court also noted that as the historical foundation of the privilege is weak, it was not expected that Parliament should have to legislate with the privilege in mind, thus not having to choose to abrogate the privilege expressly or not. 153 The reasoning provided by the Queensland Court of Appeal and the Federal Court over the course of Callanan v B, S v Boulton and Stoddart v Boulton, based on the work of David Lusty, 154 seemed to provide an historical back drop capable of accepting a distinct and separate privilege against spousal incrimination. Indeed, until this decision of the High Court, this author s list of applications capable of attracting the principle of legality did in fact number 26, including this privilege against spousal incrimination. The work of Lusty relied upon by previous cases to help establish a common law history of the privilege is indeed persuasive. The comments of the High Court regarding there being no need for Parliament to legislate with this particular privilege in mind because of the lack of historical founding seems extreme. In fact Lusty gives numerous examples of legislation in at least five Australian jurisdictions that makes some reference to the privilege against spousal incrimination. In the High Court s defence, none of these jurisdictions include the Commonwealth or indeed Queensland (in the case of Callanan). This author s list now, reluctantly, numbers 25. But this discussion should illustrate the difficulty inherent in trying to determine which rights attract fundamental status at common law. As with all areas of common law development, this too is an area developed through judicial choice. 155 When assessing the claim that the principle of legality constitutes a common law bill of rights these points should not be overlooked. They paint a bleak picture of the strength of the principle as a bill of rights. Both Parliament and the courts are well aware of the existence of the principle of legality. 156 Courts are able to interpret legislation on the assumption that if the principle is not to be applied then Parliament would have indicated it. 157 If however Parliament intends to abrogate or curtail fundamental rights and this intention is made inescapably clear, then the courts must obey regardless of the consequences and this 151 Ibid 571 [41], [231], [232]. 152 Ibid 571 [41]. 153 Ibid 571 [41], [231], [232]. 154 Lusty, above n Meagher, above n 122, Electrolux Home Products Pty Ltd v Australian Workers Union (2004) 221 CLR 309, 329 [21] (Gleeson CJ). 157 Spigelman, above n 11,

19 The Principle of Legality: An Australian Common Law Bill of Rights? has happened on more than one occasion. It is obvious that something more is needed to aid in the protection of human rights, something that engages with the other arms of government as well. 158 III Australian Human Rights Legislation The Australian Capital Territory was the first Australian jurisdiction to enact a bill of rights, either statutory or entrenched, in Victoria followed suit in Both the Human Rights Act 2004 (ACT) ( ACT Act ) and the Charter of Human Rights and Responsibilities Act 2006 (Vic) ( Victorian Charter ) are based largely on the New Zealand Bill of Rights Act 1991 (NZ) and the United Kingdom Human Rights Act 1998 (UK). 161 Both of these Acts were designed as alternatives to stronger Constitutional rights instruments, such as that found in the United States, which lead to a significant imbalance in power. 162 These Acts set up a dialogue model which allows for each arm of government to contribute to human rights protection but the final authority on the matter rests with the legislature. 163 Neither the ACT nor Victoria has granted the human rights in the respective Acts free standing force. Protection is achieved through an intricate statutory framework preserving parliamentary sovereignty. 164 Part 3 of the ACT Act 165 and Part 2 of the Victorian Charter 166 set out the human rights protected under the respective instruments. These rights can be described as follows: Gray puts forward the proposition that rights such as the presumption of innocence may be able to be constitutionally protected as being a part of the right to a fair trial as recognised in Dietrich v The Queen: Anthony Gray, Constitutionally Protecting the Presumption of Innocence (2012) 31(1) University of Tasmania Law Review 132. To date however, a majority of the High Court has not found any human right or individual guarantee to be implied from Chapter III of the Constitution. See Wendy Lacey, Inherent Jurisdiction, Judicial Power and Implied Guarantees under Chapter III of the Constitution (2003) 31 Federal Law Review 57; Lacey, above n 15, Chapter 6. See also Assistant Commissioner Michael James Condon v Pompano Pty Ltd [2013] HCA 7 (French CJ). 159 Human Rights Act 2004 (ACT). 160 Charter of Human Rights and Responsibilities Act 2006 (Vic). 161 Beckett, above n 3, Helen Watchirs and Gabrielle McKinnon, Five Years Experience of the Human Rights Act 2004 (ACT): Insights for Human Rights Protection in Australia (2010) 33 University of New South Wales Law Journal 136, Ibid. 164 Alistair Pound and Kylie Evans, An Annotated Guide to The Victorian Charter of Human Rights and Responsibilities (Thomson Lawbook Co, 2008) [120]. 165 Sections Sections Pound and Evans, above n 164, xv-xvii. 101